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CAMBODIA: THE LONG HARD JOURNEY TO PEACE AND HUMAN RIGHTS Chapter for Activating Human Rights and Peace: Theories, Practices and Contexts (Ashgate Publishers) Edited by Beechen Goh, Baden Offord and Rob Garbutt

The Hon. Michael Kirby AC CMG

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ACTIVATING HUMAN RIGHTS AND PEACE: THEORIES, PRACTICES AND CONTEXTS

ASHGATE PUBLISHERS

BEECHEN GOH, BADEN OFFORD AND ROB GARBUTT (Eds)

CAMBODIA: THE LONG HARD JOURNEY TO

PEACE AND HUMAN RIGHTS

The Hon. Michael Kirby AC CMG LIVING IN THE EAR OF HUMAN RIGHTS

As a child at school, I learned about the Second World War, which had

then recently concluded. In 1949, I was given a copy of the Universal

Declaration of Human Rights1 (UDHR). In those days, Australian school

children were taught about the importance of human rights; how

observance of and respect for such rights would be a safeguard against

further wars; and of the contents of the Declaration which Eleanor

Roosevelt, René Cassin and their colleagues had lately drafted.

In the course of my judicial service, I was naturally required to give effect

to the broad principles of human rights, as expressed in the common law

Earlier writings by the author on similar themes appear in editions of the Melbourne Journal of International Law and in the Australian Year Book of International Law, published in 2010 and 2011. Justice of the High Court of Australia (1996-2009); Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia (1993-96). 1 UDHR, GA Res 217A(iii). The Constitution of the Kingdom of Cambodia 1993, Art.31, states that the

Kingdom of Cambodia ‘shall recognise and respect human rights as set out in the Charter, the *UDHR+, the covenants and conventions related to human rights, women’s and children’s rights. See L. O’Neil and G. Sluiter, “The Right to Appeal a Judgment of the Extraordinary Chambers in the Court of Cambodia” (2009) 10 Melbourne Journal of International Law 596, 606.

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and statute law of Australia. The impact on the common law of universal

human rights was demonstrated most vividly in 1992 in the decision of

the High Court of Australia in Mabo v Queensland [No.2]2. In that case,

which recognised for the first time the right of indigenous Australians to

enjoy a legal claim to their traditional lands, the international principles of

human rights were invoked in the Court‟s reasoning. They were utilised

to overcome 150 years of decisional law which had previously denied

such recognition.

In constitutional cases, the invocation of universal human rights to assist

in the interpretation of the Australian Constitution, has so far proved very

controversial3. Nevertheless, the interstitial utilisation of the principles of

universal human rights has been happening. It appears inevitable that

this process will continue in Australia4. This is an interesting and

important development for the law and for justice. Still, it is not the one

that I have chosen to address in this contribution.

In addition to my duties as a judge, I have had the privilege, over thirty

years, of participating in a number of international bodies and United

Nations agencies, concerned with the protection of universal human

rights within their several spheres of operation:

This involvement began in 1978-80, when I chaired an expert

group of the Organisation of Economic Co-Operation &

Development (OECD) in Paris. It produced the Guidelines on

Privacy, which were to prove highly influential on the protection of

2 (1992) 176 CLR 1 at 42.

3 Cf. Al-Kateb v Godwin (2004) 219 CLR 562 at 581-595 [36]-[73] per McHugh J; 622-630 [169]-[193] per

Kirby J (dissenting); Roach v Electoral Commissioner (2007) 233 CLR 162 at 177-179 [13] per Gleeson CJ; 219-222 [15]-[171] per Hayne J (dissenting); 224-226 [181]-[182] per Heydon J (dissenting). 4 M.D. Kirby, “The Australian Use of International Human Rights Norms: From Bangalore to Balliol – a

View from the Antipodes”, (1993) 16(2) UNSW Law Journal 363.

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that universal value of human rights in the law of Australia, as in

many other lands5.

Soon after, the AIDS epidemic arose, I participated, between 1987

and 1990, in the Global Commission on AIDS of the World Health

Organisation. That body was concerned to protect the rights of

people infected with HIV, or at risk of infection, from stigma and

discrimination. And to ensure the access of vulnerable and needy

people to the best available health care. Again, our starting point

was the right to basic health care expressed in the Universal

Declaration and in later human rights instruments.

In 1991-92, I participated in a commission of enquiry conducted by

the International Labour Organisation into the compliance of South

Africa with universal human rights in the world of work.

Between 1995-2005, I served on the International Bioethics

Committee of UNESCO, elucidating the new human rights issues

that arise from the advances in biotechnology, specifically from the

mapping of the human genome.

Now, in 2010-11, I am serving on two international bodies which

have been established to conduct investigations concerning the

protection of particular human rights. One is the Eminent Persons

Group (EPG) of the Commonwealth of Nations. The EPG is

examining the institutions of the Commonwealth with a view to

ensuring that they are more active and effective in defending the

basic human rights of citizens of Commonwealth countries.

Relevant to these are the rights to participate in democratic

government, to enjoy the benefits of the rule of law, gender

equality and other fundamental rights. The other body is the 5 Organisation for Economic Co-Operation and Development (OECD), Guidelines on the Protection of

Privacy, Paris, 1980; cf M.D. Kirby, “The history, achievement and future of the OECD guidelines on privacy” (2011) 1 International Data Privacy Law 6.

4

Global Commission on HIV and the Law, established by the United

Nations Development Programme (UNDP). I take part there in an

intensive global exercise addressing the reform of the law in

United Nations member states so as to uphold the effectiveness of

the international efforts to contain the spread of HIV and to ensure

the access of those infected, or at risk, to essential health care.

All of these projects, and others that I have not mentioned, illustrate the

many ways in which, in the contemporary world, human rights and

peace are intertwined. How the Universal Declaration of Human Rights,

and the many treaty statements of human rights that have grown out of

it, influence contemporary understandings and implementation of human

rights in many countries, including Australia. These subjects too would

be relevant to the issues explored in this book. However, to do justice to

their variety and complexity I would require much more space than is

allotted to me.

Accordingly, I have decided to concentrate on a particular and

somewhat special project in which I was engaged between 1993-1996.

This concerned the bringing of peace, security and human rights to a

country, Cambodia, after it had suffered under the Khmer Rouge

between 1975-1979 some of the most severe disruption occasioned to

any land in the twentieth century. For Cambodia, that was a time of war,

human rights abuses and genocide. As part of the process of building

peace and human rights, I was appointed by the Secretary-General of

the United Nations (then Mr. Boutros Boutros-Ghali) to be his Special

Representative for Human Rights in Cambodia. It was not an easy time.

The government of Cambodia was not always co-operative, either with

me or with my successors.

5

In a lecture, delivered at the Australian National University in 2008,

Professor Hilary Charlesworth, a noted expert on international law,

raised questions as to the effectiveness of the United Nations „special

procedures‟ under which the office of Special Representative was

created6. In effect, Professor Charlesworth asked whether the repeated

instances of non-co-operation, that was eventually evident on the part of

the government of Cambodia, rendered the system of Special

Representatives (and specifically the one appointed to report on human

rights in that country) amounted to little more than wishful thinking. Did

such procedures afford an oppressive government the appearance of

human rights compliance and monitoring whereas the reality was quite

different? Would it not be preferable to terminate such costly charades?

Would such a move not expose the autocrats and oppressors of the

world to the sharper scrutiny of a more honest international community?

Not a world blinded by its own delusions and its well-meaning hopes for

progress in human rights which the realities denied?

By reference to the tragic history of Cambodia; the creation of the UN

special procedures; and the activities in which I was engaged as UN

special representative, I propose in this chapter to explore the subject

raised by Professor Charlesworth. My conclusion will be that a number

of her criticisms are well made. Eventually, in international human rights

procedures, a position will be reached where the United Nations should

not lend its authority to wilful oppressors and tyrants.

6 H. Charlesworth “Swimming to Cambodia: Justice and Ritual in Human Rights After Conflict”, (Kirby

Lecture on International Law 2008) [2010] Australian Year Book of International Law (forthcoming 2011).

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Still, on balance, I am of the view that the Cambodian project and my

service as Special Representative were worthwhile. So my purpose is to

explain how I reach that conclusion. This is a very modern study in the

realities of human rights protection in a world that commonly mixes hope

and realism in a sometimes potent concoction.

CAMBODIA: WAR AND GENOCIDE

In colonial times, Cambodia was a protectorate of France. It re-gained

substantial independence after the Second World War. However, a

series of coups d’état in the 1970s deposed its royal government. The

serious disruption of the country was precipitated by a war being waged

in neighbouring Vietnam by the Viet Cong, first against the French

colonial rulers and then against their Western successors, chiefly from

the United States of America but also from Australia.

The Khmer Rouge established their regime in Cambodia in 1975.

Thereafter, in the five years of their rule, between 1.3 and 2 million

Khmer people lost their lives7. The regime was brutal and murderous.

Very few Khmer did not suffer the loss of family members, particularly if

they were educated or in any way connected with the preceding

governmental regimes. The years of horror were only ended by an

invasion on the part of Vietnamese-led forces. They entered Cambodia

from the east in 1978-9. Ultimately, these forces prevailed. They

established a new government in Phnom Penh. The residual Khmer

Rouge elements fled to the north and east of the country where they

remained in control of remote districts.

7 See e.g. D. Chandler, The Tragedy of Cambodian History: Politics, War and Revolutions Since 1945

(Yale Uni Press, 1991); B. Kiernan, The Pol Pot Regime: Race, Power and Genocide in Cambodia Under The Khmer Rouge (Yale Uni Press, 1996).

7

Notwithstanding the military defeat of the Khmer Rouge, the

representatives of „Democratic Kampuchea‟ retained the Cambodian

seat at the United Nations. The failure of the Western nations, who

presented themselves as proponents of universal human rights, to

recognise the new government in Phnom Penh occasioned a deep

feeling of resentment in Cambodia and a sense of betrayal.

Twenty years ago, in 1991, the contesting factions met together and

signed the Paris Peace Agreement. This Agreement provided for the

creation of the United Nations Transitional Authority for Cambodia

(UNTAC). Article 17 of the Paris Peace Agreement expressly allowed

the appointment of a guardian for human rights. It said8:

“The United Nations Commission on Human Rights should continue to monitor closely the human rights situation in Cambodia, including, if necessary, by the appointment of a Special Rapporteur who would report his findings to the Commission and to the General Assembly.”

It was by this means that the international community hoped to salve its

conscience and sought to build a lasting peace based upon principles of

universal human rights and trusted institutions. The transition of power

in Cambodia was successfully completed. The military wing of UNTAC

was led by a United Nations force of peace-keepers commanded by an

Australian soldier (General John Sanderson).

Encouraged by this success, the United Nations then took two further

steps to bring peace and justice to the shattered country. The first was

the creation of a well staffed country office in Phnom Penh, known as

8 Agreement for A Comprehensive Political Settlement of the Cambodia Conflict, 1663 UNTS 27 (Paris,

23 October 1991), art.17. See United Nations, Department of Public Information, The United Nations and Cambodia 1991-1995 (UN Blue Book Series, Vol.II, UN, 1995), 93ff.

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the United Nations Centre for Human Rights (OHR). This was the first

such human rights office created by the United Nations outside Geneva.

The second step was the creation of the office of Special Representative

of the Secretary-General (SR). As I have said, in 1993, I was appointed

to that post.

During the UNTAC period, a national election had been conducted in

Cambodia. It was supervised and monitored by the United Nations. It

resulted in a successful election with electoral high participation and

generally accepted integrity. A national government was formed from a

coalition of the Royalist FUNCINPEC Party (led by HRH Prince Norodom

Ranariddh) and the Cambodian People‟s Party (CPP) led by Hun Sen, a

one-time minor officer-holder in the Khmer Rouge. Those two leaders

became respectively the First and Second Prime Ministers of the new

Kingdom of Cambodia. The former titular leader, Prince Sihanouk,

assumed the title of King of Cambodia. He held that office as a

constitutional monarch throughout my service as SR. He provided

consistent support for my endeavours to uphold human rights in the

country.

My task was to undertake missions to Cambodia; to investigate the

state of human rights in the country; to encourage the development of a

human rights culture within the National Assembly, the government, the

judiciary, and other organs of the state; and to visit outlying districts

pursuant to an orderly programme proposed for my approval by the

OHR in the capital. At the end of each mission to Cambodia, I would

meet officials of the United Nations agencies working in the country, with

relevant responsibilities for particular aspects of human rights (including

the ILO, WHO, UNESCO and UNDP). Then, in an intensive period of

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activity, working with expatriate and local staff in the OHR, I would draft

and settle a mission report on my findings concerning human rights.

These reports also contained many recommendations for steps that

should be taken to improve the human rights situation in the country.

By the time I commenced my first mission to Cambodia in 1993, the

UNTAC peacekeeping force had been reduced from a contingent of

thousands of multi-national peacekeepers to but three military

personnel. Essentially, therefore, the only sanction that I could invoke,

in order to encourage compliance by the government and officials of

Cambodia with their human rights obligations as identified by me, was

the publication of reports; by participation in media communications; and

by an ongoing process of engagement with the OHR in Phnom Penh

and with the people of Cambodia and their civil society organisations.

At first, the government of Cambodia adopted a generally co-operative

attitude, with the exchange of compliments at the international reporting

sessions in Geneva and New York. However, as time passed and as it

became necessary for me to report on serious breaches of international

human rights law, the earlier amity faded. Within less than a year, the

Second Prime Minister (Hun Sen), who was shortly to assert his

predominance in the power structures of the country, declined to meet

me during my missions. This conduct, and other behaviour by or for the

government of Cambodia, made the discharge of my responsibilities

increasingly difficult.

Resentment on the part of Prime Minister Hun Sen came to the boil in

1995 when my reports referred to problems of abuse of power by military

and police personnel; to serious restrictions on freedom of expression;

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and limitations on the activities of civil society organisations9. Specially

resented were interventions in defence of the rights of an elected

member of the National Assembly who had become a political

opponent10.

In the event, my appointment as a Justice of the High Court of Australia,

announced in December 1995, required me to resign from the office of

SR as from early 1996. In a sense, the appointment was a deus ex

machina. I resigned with due notice at the end of 1975, completing my

last (seventh) mission to Cambodia in January 1996.

Given the non-co-operation on the part of the government of Cambodia;

the effective refusal of its leaders to remedy criticism of actions viewed

as contrary to basic human rights; and the policy of ignoring

recommendations with which they disagreed, several questions are

presented: Was the system of „special procedures‟, of which I was a

part, of any real value to the people of Cambodia? Would it have been

preferable, where an obvious policy of non-co-operation emerged, to

withdraw the office of the United Nations SR from Cambodia, lest its

continued operation should give the false impression that Cambodia and

its government were human rights compliant and subject to effective

monitoring by independent representatives of the world community? Did

my presence as SR give a misleading illusion of effective human rights

guardianship which it would have been preferable to avoid?

9 United Nations, Report of the Special Representative of the Secretary-General on the Situation of

Human Rights in Cambodia, submitted pursuant to Commission on Human Rights Resolution 1993/6 – Addendum, 50

th Sess, Agenda Item 19, UN Doc.E/CN.4/1994/73/Add.1 (21 February 1994) [26]-[55].

10 United Nations, Report of the Secretary-General, Role of the United Nations Centre for Human Rights

in Assisting the Government and People of Cambodia in the Promotion and Protection of Human Rights, 50th

Sess, Agenda Item 1, UN Doc.A/50/681/Add.1 (26 October 1995) [10], [13].

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SPECIAL PROCEDURES – A CAUTIONARY TALE

Inherent weakness of the system: The starting point in considering

the effectiveness of the UN special procedures (or of any other

procedures for the protection of human rights by the United Nations that

could be created in their place), is an appreciation of the inherent

limitations upon what is politically feasible.

When the United Nations was created in 1945, it was originally

contemplated that the protection of fundamental human rights would be

one of the foundations upon which the Organisation would be

established11. Indeed, in the beginning, it was contemplated by some

that the Charter would include an international bill of rights that would

express justiciable rights belonging to the peoples of the member states,

in whose name the Charter was proclaimed12. Some critics suggested

that the initial failure to achieve this goal left the protection of human

rights weak and very vulnerable13.

The UN Commission on Human Rights (CHR) was established in 1946

under the Economic and Social Council of the United Nations. In due

course, the CHR sought to respond to a number of grave instances of

human rights violations about which there was a broad consensus

among the members of the United Nations, particularly in South Africa

and Latin America.

11

Charter of the United Nations, Preamble, Arts.1, 55, 62, 68, 76. 12

The Preamble of the Charter of the United Nations begins: “We the Peoples Of the United Nations Determined ... Have resolved to combine our efforts to accomplish these aims”

13 A. Devereux, Australia and the Birth of the International Bill of Human Rights 1946-66, (Sydney,

Federation Press, 2005), 28. Cf. M.D. Kirby, “Herbert Vere Evatt, The United Nations and The Universal Declaration of Human Rights After 60 Years” (2009) 34 UWA Law Review 238 at 246.

12

In 1975, following the coup d’état which deposed President Allende of

Chile, a working group of the CHR was created to investigate evidence

about that event. In 1979, that working group was replaced by a „special

rapporteur‟ of the CHR. He was afforded a mandate to investigate, and

report upon, allegations of enforced disappearances of government

critics in Chile14. It was in this evolutionary (and apparently accidental)

way that the „special procedures‟ of the United Nations actually began.

In due course, the special procedures were extended to a number of

working groups, special rapporteurs of the CHR and special

representatives of the Secretary-General. However, without recourse to

an independent international court with jurisdiction to find conclusively

breaches of international human rights law and to enforce its decisions,

the procedures for conducting investigations, and making findings and

recommendations, were inherently dependent upon co-operation on the

part of the countries and officials concerned. Yet many of them were the

very subjects of the complaints and reports under consideration of the

United Nations.

Given these realities, it is only reasonable to judge the United Nations

„special procedures‟ in the context of the practicalities within which they

were created and presently operate. Although it is true that regional

human rights courts have been created since 1945 for Europe, the

Americas and Africa and that these, to some extent, fulfil the dreams of

those who in 1945 envisaged justiciable and enforceable human rights,

the prospect of a truly global human rights court remain elusive. Neither

14

Explained in United Nations, Office of the High Commissioner for Human Rights, Frequently Asked Questions About the United Nations Special Rapporteurs, Fact Sheet No.27, UN Office of the High Commissioner for Human Rights, Geneva, 2001.

13

the Asian nor the Pacific regions of the world have established a

regional human rights commission, still less a court with enforceable

jurisdiction. The creation of a world court of human rights appears as far

away today as it was in 1948.

Realism therefore suggests that the UN procedures must be measured

not against some ideal or theoretical criterion, which presently appears

unattainable, but by the standards of the institutions that are in place, or

likely to be attained, at least in the foreseeable future. In judging the

United Nations, we should not lose our faculty of critical, even sceptical,

assessment. But neither should we lose our sense of proportion and

practicality, given the geopolitical realities of the world whose nation

states make up the membership of the United Nations.

Although the Charter might have been proclaimed in the name of the

people of the United Nations, the role of the people in the Organisation

is little more than symbolic and rhetorical. Not for nothing is the

Organisation titled the United Nations.

Particular difficulties in Cambodia: I must acknowledge that, in the

performance of my duties as Special Representative, there was a

gradual, and ultimately steep, decline in the relationship between me

and the Royal government of Cambodia.

By 1995, the co-Prime Ministers of Cambodia addressed a letter, to the

Secretary-General of the United Nations requesting exploration of the

termination of the UN human rights mandate in Cambodia by the end of

1995.

14

The Secretary-General responded to this request by dispatching to

Cambodia his Special Envoy, a British national, Mr. [later Sir] Marrack

Goulding (UN Undersecretary-General for Political Affairs). Mr. Goulding

managed to restore relations for a time. However, relations soon

deteriorated still further. Hun Sen, in a reported public outburst in front

of senior officials, declared that I was a „crazy lawyer whom [he had]

hated as long as [he had] known‟ me15. The re-instituted refusal of the

Prime Ministers to meet me during my missions, the public insults and

broadsheet attacks on me (and on the then Prime Minister of Australia

Mr. Paul Keating and the Australian Ambassador) produced a very

difficult situation. To this was added the actual physical danger resulting

from death threats launched against me and broadcast by the Khmer

Rouge clandestine radio. It was doubtless a cause or relief when I

resigned from the post from early 1996.

Each of the succeeding Special Representatives of the Secretary-

General was, in turn, treated to a similar regime of non-co-operation;

calumny; and demand for replacement. The fourth Special

Representative, Professor Yash Ghai CBE, an experienced and

respected legal scholar who had played a part in constitutional work for

several countries, probably faced the most tumultuous of difficulties. In

his last report, delivered in 2008, he said16:

“I have to repeat many of the recommendations of [sic] the first Special Representative made in his first report, as the government showed little disposition to take any positive action. This state of affairs may raise a question as to whether there is any point in extension of the mandate.”

15

Reported in N. Carter, ‘Cambodian Leader “Hates” Justice Kirby’, The Courier Mail (Brisbane), 8 March 1996, 7. 16

United Nations, Statement by Professor Yash Ghai, (Statement delivered at the 9th

session of the Human Rights Council, Geneva, 15 September 2008, p.2.

15

Professor Ghai complained about his treatment at the hands of

Cambodian officials, but also the lack of effective support that, he

claimed, he had received from the United Nations itself17:

“If the UN Council on Human Rights decided to exact [scil extend] the mandate of the Special Representative, as I would urge it to do, it would be very important that my successor should have the full support of the Council, the UN family and the international community. I cannot say that I had a great deal of such support, and this merely encouraged Cambodia‟s Prime Minister, Mr. Hun Sen, constantly to insult me. He called me deranged, short-tempered, lazy, while the government spokesperson, Mr. Khiu Keinereith, called me uncivilized and lacking Aryan culture. Mr. Hun Sen also accused me of telling lies and accepting my appointment merely to get a salary. He described the international human rights organizations and myself as acting like animals. He degraded my country, Kenya, saying it was becoming a killing field and Mr. Khiu Keinereith said that the Kenyans are rude and servants. The office of the High Commissioner for Human Rights, Geneva did not come to my defense and as it also declined to issue a statement explaining that I receive no salary, I was forced to do so in my own name.”

The foregoing chronicle appears to lend support to what I take to be

Professor Charlesworth‟s central thesis18. Any „special procedures‟

created for the international defence of human rights by the United

Nations must have practical utility. If such procedures are ignored with

impunity, their proponents insulted and left unsupported by the United

Nations, a point would be reached when it will be preferable to close

them altogether. I accept that. Was that point reached in Cambodia?

THE UTILITY AND IMPROVEMENT OF SPECIAL PROCEDURES

Special procedures and their use: Despite the very obvious

17

Ibid. 18

After the resignation of Professor Yash Ghai as Special Representative, the mandate of the Secretary-General was not extended. Instead, the Human Rights Council, acting on the initiative of its President, appointed Mr. Surya Subedi of Nepal as a country special rapporteur.

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limitations upon capabilities described by Professor Charlesworth, my

experience in Cambodia suggests that the existence of the office of SR

was useful in a number of respects:

In reminding the government and people of Cambodia, in a very

public way, of the existence and content of universal human rights;

of their recognition of the text of the Constitution of Cambodia; and

in their ratification in international treaties to which Cambodia had

subscribed;

In the support given to non-governmental organisations in

Cambodia, which flourished after the Paris Peace Agreement and

under UNTAC;

In the way that the Office of Human Rights (OHR) worked closely

with the SR, providing an effective secretariat for his activities.

The SR and the OHR also provided support to and (to some

extent) international protection for, the minority voices in society in

Cambodia;

In the likelihood that many particular issues would not have been

raised, or raised effectively, without the appointment of the SR. In

my own case, for example, my repeated insistence that HIV/AIDS

was an urgent and crucial human rights issue facing Cambodia

was ultimately accepted by government officials, medical experts

and finally the government itself;

Likewise, co-operative efforts to protect and save the Khmer

cultural treasures at Ankor Wat and elsewhere in Cambodia

represented real and tangible achievements for the United Nations

agencies and, through them, for the people of Cambodia

themselves; and

17

In the co-ordination of United Nations staff in the defence of

human rights which was an important element in the work of the

SR.

Additionally, the reports of the SR successively in New York, Geneva

and at the conclusion of missions in Phnom Penh, represented not only

a voice to the people of Cambodia themselves, but also to the foreign

missions, United Nations agencies and international donor agencies

operating in the field in Cambodia.

During my time as SR and after, the SR‟s report was highly detailed. It

drew on intensive work performed in the months preceding each

mission. In this sense, the SR became a voice to the international

community for the OHR in Cambodia. On some issues (such as press

freedom and the defence of political speech), the government of

Cambodia was intolerant and excessively sensitive of criticism. Yet on

other issues (such as land mine clearance, preservation of cultural

treasures and, eventually, pursuing HIV strategies), the government was

willing to listen and to act on advice. In my experience, it was even

anxious to receive technical assistance which the SR could sometimes

help to procure for Cambodia. Behind the political events, the important,

patient work of the United Nations agencies proceeded. I have always

regarded the agencies of the United Nations (rather than political organs

such as the Human Rights Commission (now the Council on Human

Rights) as the means by which the largest achievements of human rights

are generally notched up.

Refining special procedures: I accept Professor Charlesworth‟s

criticisms of the way special procedures are presently organised under

18

the Human Rights Council. A number of practical improvements could

be achieved:

There is unevenness in the experience and activity of many SRs.

A possible need exists for a more transparent procedure to asure

quality appointments;

Before entering upon the duties of an SR, it would be desirable

that improved facilities for training and preparation should be made

available to a newly appointed SR;

The Council on Human Rights has lately reduced the number of its

country mandates. The geopolitical considerations that influence

the election of countries to the Council unfortunately affect the

consequent adoption, and maintenance, of special procedures for

particular subject areas and particular countries;

The Office of the High Commissioner for Human Rights, created

since I was first appointed as SR, needs to lend consistent support

to SRs. If the complaint of Professor Ghai is even partly correct,

he was not adequately supported and that is not how it should be;

The improved use of the local and international media is required if

the sanction of SR reports is to be rendered effective;

The style of report writing by the SR needs to improve. For

example, it should drop the use of the passive voice and the usual

impenetrable features of much United Nations documentation;

The international donor community needs to be engaged more

closely by the SRs and called in aid when the going gets tough;

SRs should continue to meet together as a group annually; to

share experiences; and to explore the common difficulties and

potent strategies in discharging their respective missions; and

19

There should be effective auditing of SR reports. The production

of a report, in itself, may do nothing to improve human rights. It is

the beginning of a human rights process; not an end in itself.

AN EVOLVING INSTITUTION

In the constitutional history of the English-speaking people, it took a

millennium for them to advance even to the present imperfect systems of

national governance: to ensure free and fair elections; to establish the

rule of law; and to assure the (partial) protection of universal human

rights. Still many defects remain.

As I have explained, in Australia, it was not until 1992, in the Mabo

decision19, that the land rights of the Aboriginal people were finally

recognised by the common law. The last 50 years have seen numerous

improvements in Australia and the world in the protection of women, of

political minorities, of sexual minorities and of prisoners, refugees and

other vulnerable individuals and groups. It is not reasonable to expect

that everything would immediately fall into place in a shattered, war-torn

community such as Cambodia, devastated by war, revolution and

genocide. To expect this would be the expect miracles, not attainable

realities.

In securing universal human rights, it is essential to adopt an historical

perspective whilst at the same time recognising the particular urgencies

of the contemporary world. It is natural to be impatient with the

institutional weaknesses, inefficiencies and more than occasional

instances of governmental and individual hypocrisy, duplicity and

incompetence. Yet progress has been made

19

Mabo v Queensland [No.2] (1992) 175 Commonwealth Law Reports 1.

20

When seen from the perspective of the urgent needs that exist in the

world and the terrible sufferings of millions in war and genocide in the

last century, the imperfections of the United Nations in the past sixty

years are all too obvious. So it necessarily was in Cambodia. Healthy

self-criticism, appropriate candour and realistic scepticism are essential

and desirable. So is courage, flexibility and imagination. But despair

and abandonment are not the way to improve global human rights in

practice. I have sought to demonstrate this fact by reference to my

particular experience in Cambodia. However, the same could be

established by many other instances of United Nations activity, including

some in which I have myself been engaged.

Sometimes it is natural to despair. Cambodia particularly often

engenders such a feeling. But our commitment to future generations

obliges us to persist and never to give up. To be dogged and always to

bounce back in the cause of universal human rights. This is the way of

the future. Each new generation must accept the duty to press on and

to contribute, as best it can, to the noble dream of universal human

righted engendered by the UDHR – so as to make the dream a living

reality for all in the future.

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